Bakhori Gope vs Hafiz Abdul Halim and Others

Rowland, J.—This is an application by the informant at whose instance nineteen accused persons were prosecuted on charges of rioting, grievous hurt and attempt to murder and the proceedings resulted in the acquittal of all the accused by the unanimous verdict of a jury in the Court of the Additional Sessions Judge of Patna on 9th June 1939. Of the persons said to have taken part in this alleged riot one Abdul Shah died on 21st August 1938 and another Rafiquddin has died since the disposal of the Sessions case. There are therefore seventeen persons whose acquittal the petitioner seeks to have revised. The application was presented more than sixty days after the acquittal of the accused. The occurrence in question took place on 16th August 1938; the accused persons were committed to the Court of Session on 22nd September 1938 and it was not till 29th January 1939 that a date was fixed for the trial and precept issued for summoning the jurors. The trial actually commenced on 5th May 1939 and terminated as above stated on 9th June 1939.

In view of these protracted proceedings it would be unfortunate if it should prove necessary again to re-open the matter which has been decided. This Court always acts with great reluctance in allowing a petition for revision against an order of acquittal and only when it is shown that such interference is essential to avoid or remedy a clear failure of justice. There is a regular procedure for challenging an acquittal by a criminal Court through the means of an appeal, by the Local Government and the Local Government has not thought fit to prefer any appeal in the present instance. I shall however deal with the points raised, particularly the first objection pressed before me as this relates to a defect in the manner of choosing the jury in consequence of which it is said the whole trial was without jurisdiction as having been held coram non judice.

It is said that the precept for summoning jurors which was issued on 29th January 1939 by an Assistant Sessions Judge to whom the Sessions Judge had transferred the case was ultra vires. For this contention reference is made to the opening words of Section 826, Criminal P.C., under which the Sessions Judge is ordinarily to send the usual letter to the District Magistrate. It it said that the Assistant Sessions Judge has no authority to exercise the powers given by the section to the Sessions Judge. No reported case could be produced in support of this contention, but there is a reference in the textbooks to an unreported decision--Ratanlal 148--for the proposition that the duty imposed on the Sessions Judge by Section 326 cannot be discharged by a subordinate Judge in temporary charge of the current routine duties of the office of the District and Sessions Judge.

It is argued that the Assistant Sessions Judge had no power to act u/s 326. The decision relied on by Ratanlal could not be produced, but on the face of the citation in the text books, it would appear that perhaps the subordinate Judge whose action was called in question was an officer not having any Sessions powers at all otherwise he would perhaps have been referred to as Assistant Sessions Judge. Therefore the dictum seems to be quite irrelevant to the contention advanced before me. But whether or no an Assistant Sessions Judge has the power given to the Sessions Judge by Section 326 there can be no doubt whatever that he has the powers conferred on the Court of Session u/s 327. If a set of jurors or assessors have been summoned by the Sessions Judge for a whole session, it is still open to the presiding officer of any of the Courts holding Sessions to summon another set of jurors for a particular trial if it is not convenient or practicable for the trial to be held by jurors of the set summoned by the Sessions Judge u/s 326.

In practice it is not usual for the Sessions Judge to act u/s 326 summoning a single set of jurors to hear all the cases that are set down for hearing in a particular session but rather to summon one set of jurors for each trial that has to be held, and this it has been held is in accordance with and is authorized by Section 327. The procedure in choosing jurors and the consequences in the event of fewer jurors appearing in Court than have been summoned are discussed in two cases of this Court and two of the Calcutta High Court which may be referred to.

In Akbar Ali v. Emperor AIR 1928 Pat. 1, it was held by a majority that the jury had correctly been empanelled in a case where ten jurors were summoned but only five had appeared in Court. The Court drew lots including the names of those jurors who were absent as well as those who were present and some absent jurors were chosen by lots, but they being absent the Judge obtained substitutes for them by the process of elimination.

A similar view is taken in Kedar Nath Mahto and Others Vs. Emperor, , The ballot which was to be held u/s 326 is a ballot among the names of all the persons summoned whether all of them are or are not present.

The procedure was again considered in Emperor Vs. Ermanali and Others, and again in this Court in Bihari Mahto v. Emperor AIR 1931 Pat. 152. The procedure was thus in accordance with law. It has been argued however that in view of the fact that after summoning the jurors the case had to be repeatedly adjourned some steps ought to have been taken either for summoning a fresh jury or for summoning additional jurors to make up a sufficient number so that there might be on the day of trial a free choice. It was suggested on one of the dates to which the hearing was adjourned that this should be done, but the Additional Sessions Judge thought he had no power to do so. His opinion does not appear to be correct. When the case was being adjourned to the next month, he had power u/s 327 to summon a fresh set of jurors, if he thought fit to do so, and it may have been desirable that the presiding officer should have taken steps to obtain the presence of a sufficient number of jurors so that it might not be open to any person to suggest that there was a possibility of imputing any such thing as packing of the jury or of outside influences being brought to bear on them. But when the procedure has been in accordance with the statute the manner in which the jury were constituted will obviously not be a ground for interference in revision. The actual composition of the jury was that of the five jurors the foreman and one other were Hindus and the other three were Mahomedans. The case was one in which communal feeling might be expected to be manifested as the informant and all the principal witnesses were Hindus while the accused were all Mahomedans. The fact that the jury were unanimous may be an indication that in their verdict the jury were not influenced by communal considerations.

Apart from the objection taken to the constitution of the jury criticism has been directed on the procedure followed at the trial and alleged misdirection in the charge to the jury. I do not find that any of the alleged defects in the procedure or in the charge are of such a nature as to justify me in taking the exceptional course of ordering a retrial of the acquitted persons. I propose however to deal with the points raised as examination of the record has shown some imperfections which it may be of use to indicate with a view to their avoidance in future.

In the matter of procedure at the trial, the first point taken refers to improper rejection of evidence as inadmissible. To explain the relevance of this I may state the salient facts of the case. On the day in question a Mahomedan butcher was leading a cow from south to north in village Konand. Some Hindus became aware of this fact. Believing that the cow was being taken for the purpose of being slaughtered they disapproved and went according to their own story to protest peacefully but according to the defence to attack the butcher and other Mahomedans who might oppose them or try to promote slaughter of the cow. Some Mahomedans appeared on the other side and & clash ensued in which Abdul Shah and five other'' Mahomedans received injuries while on the Hindu side Barho Singh received two incised injuries and an abrasion on the hand and six other persons received gunshot wounds. Abul Shah died in hospital on 21st August 1938 from some effusion of blood which might have been caused by an injury on the head which he received in the fighting on 16th August. The doctor however does not definitely state that this injury was the cause of death. Before his removal to hospital he was questioned by the investigating officer and the Superintendent of Police and made a statement to them which the prosecution wished to prove.

The Additional Sessions Judge had at first recorded the deposition of the witnesses relating to this statement, but later on consideration he came to the conclusion that it was not admissible in evidence as it did not come within the terms of Section 32(1), Evidence Act. Therefore he excluded it from evidence and told the jury not to consider it at all.

It is argued that this statement ought to have been put to the jury to contradict the defence contention that Mahomedans were attacked by Hindus at the place marked points 6 and 7 of the map where according to the present contention of both sides the fighting actually occurred. In order that such a statement might be admissible it must be one made in the circumstances set forth in Section 32(1), Evidence Act, that is to say, when a statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person''s death comes into question. The Additional Sessions Judge thought that this was not a case in which the cause of Abul Shah''s death came into question. I am not sure that I should have taken the same view but it was one which it was open to the Judge to take. The prosecution witnesses, I understand, had not given any evidence as to how the injury was caused to Abul Shah which might have caused his death and on the evidence of the doctor it was for the Sessions Judge to decide whether the injury regarding which Abul Shah had made a statement to the investigating officer was proved to be the cause of his death or not and if not then the Additional Sessions Judge would be entitled to reject the disputed statement as not admissible.

It is contended that if Abul Shah''s statement had been admitted it would contradict the case made by the defence as to the place of occurrence in the trial; but the place of occurrence seems at the trial to have been hardly in controversy. It was the course of occurrence which was mainly in dispute. The prosecution witnesses had alleged that the Hindus were chased from the neigh, bourhood of the shed said to have been intended as a slaughter house to a distance of about a quarter of a mile and there attacked by the Mahomedans. The suggestion is that mention in Abul Shah''s statement of a tree near the house lends corroboration to the case of the prosecution that there was pursuit of the Hindus from that place to points 6 and 7 of the map above referred to. It is impossible to say what weight would have been attached to a statement made by a man suffering from a head injury who according to the medical evidence was partly or wholly unconscious almost the whole of the time when he was in hospital. I am not prepared to say that it would have or ought to have changed the whole of the jury''s appreciation of the facts.

Another point of procedure arises out of the cross-examination of the Sub-Inspector. It is stated that in the course of the cross-examination of the Sub-Inspector the Judge interposed angrily rebuking the Sub-Inspector and telling him to give straight answers. Mr. Wassy for the opposite party was able to point out a passage in the course of the cross-examination of the Sub-Inspector in which there are a series of answers with reference to his previous deposition before the committing Magistrate which might very well have provoked the Additional Sessions Judge to rebuke the witness and insisted that he should give straight answers to the questions put to him. The dignity of the Court is best sustained by the Judge invariably treating witnesses with courtesy and insisting that counsel should do so, though instances do arise in which firmness is necessary. If the presiding officer felt compelled to deal firmly with the witness, the actual words used, even if somewhat forcible, will not in this case lead to any suspicion of his having a bias in the matter of the case generally.

Another matter of procedure raised is with reference to the re-examination of the witness Barho Singh. The cross-examination of this witness had begun on 10th May and had been completed on the 11th and the Public Prosecutor then desired to reexamine the witness. The learned Judge did not permit re-examination on the whole of the subject-matter, but only with reference to the matters arising in the cross-examination on the 11th. Apparently the learned Judge apprehended that with reference to answers which he had given in cross-examination on the 10th the witness might have been tutored or prepared as to what explanation he should give in re-examination.

The statute however does not contemplate placing any such restriction on the right of re-examination which is conferred by Section 138, Evidence Act, and which it was not in law open to the learned Judge to take away. If the matter elicited in re-examination gave rise to any suspicion that it was the result of tutoring it would of course be open to the Judge to draw attention of the jury to the fact that the lapse of time might have given an opportunity for preparation; but this would not be a ground for refusing to let the question in re-examination be put. I however asked the learned advocate for the petitioner what was the answer which the witness would have given to the question disallowed, namely why Bakhori did not raise a halla to call the Hindus when Bamzani was taking the cow.

The answer he suggested was that as Bakhori and his companions saw the cow being taken he did not raise an alarm because they did not suspect that the cow was being taken away for slaughter. If that was the answer which the witness would have given it certainly would not have advanced the case for the prosecution for it appears that the witness elsewhere in his deposition had said that he did suspect the cow was being taken to the slaughter house from the very fact of his seeing a Kasai taking a cow. Therefore although the procedure followed by the learned Judge was in this respect erroneous, I cannot hold that it had caused prejudice to any party.

The other points are points arising out of the charge to the jury. It is said that the charge does not fairly place before the jury the case of the parties and the evidence but is an argumentative charge seeking to lead the jury to a particular conclusion favourable to the defence. It is said that the learned Judge being a Mahomedan has not impartially placed the case before the jury and has misled them. The suggestion is a grave one and I have read the charge carefully more than once in order to satisfy myself whether it could be regarded as well founded. I find that the charge is open to criticism in certain respects, but read as a whole I think it is at least an honest at-tempt to place before the jury the considerations favouring the prosecution as well as the defence and to ask the jury to choose between them. The trial had lasted a month and more, the jury had been addressed at length by both sides, and I do not think that the verdict ought to lose the finality that attaches to a verdict of acquittal by reason of the criticisms to which the charge is open. At the outset of the charge the learned Judge has given an exposition of the: law at length and in general terms. After the jury had retired the foreman had to come to the Judge and ask for a further direction as to the difference between Sections 148 and 149. In many cases it will be found a more convenient method to state first to the jury the things which the accused are said to have done and to tell them in as concrete terms as possible what offences particular alleged acts will constitute in the presence or absence of the particular intentions imputed.

It may also be observed that in general the charge seems to be more a summing up of the arguments for the prosecution and defence than of the evidence. It is well to bear in my mind the actual words of Section 297, Criminal P.C. The Court''s duty is to sum up the evidence for the prosecution and defence and lay down the law by which the jury are to be guided. The section nowhere requires that all the arguments addressed by the respective parties are to be gone over again. In fact to do this at length is apt to confuse the jury. What they really require is assistance in applying their minds to the ascertainment of the true state of the facts so far as it can be determined from the evidence.

As the learned Judge has observed in the course of the charge, the tests for determining the facts are to see not only whether the evidence is consistent but how far it agrees with established and admitted facts and the probabilities of the case. To enable the jury to apply those tests it will generally be found to assist them if the Court presents clearly to them the facts which can be said to be admitted or established and then takes them to the evidence to see how far the case of each party fits in with the probabilities and with those facts. Of course there is no hard and fast rule as to the method or order of arrangement which a Judge is to adopt in charging a jury, but experience shows that some methods bring the questions for decision more clearly before the jury than others.

When the learned Judge takes up the examination of what he calls the main features of the prosecution case, he begins with the denial of the prosecution witnesses that cow was never killed in the village and takes as his next point whether the dilapidated house was a slaughter house or not. It might have been more helpful to the jury if he had made as his starting point the admitted and established facts such as that on the side of the Hindus six persons had gun-shot wounds and one man only, Bakhori Singh, had any injury inflicted hand to hand, while on the side of the Mahomedans six persons had injuries including two persons previously hurt. The fact that a Mahomedan butcher had been taking a cow from south to north on that day was also an established and admitted fact though there was a difference between the parties as to the identity of this man. That the cause of the dispute was the cow was again an admitted fact: also it was admitted that the cow was not killed. That a clash between the Hindus and Mahomedans occurred was similarly indisputable and the jury could next have-been referred to the signs found on the spot indicating the place of occurrence at points 6 and 7 of the map. That there was gunfire was undisputed. An orderly exposition of these facts might have led up to the direct question to the jury whether the persons alleged to have fired had done so and whether the other persons alleged to have taken part in the affray had been there. If those questions were answered in the affirmative, there would arise the further questions whether the accused party had an intention which constituted their assembly unlawful,, whether the person or persons who fired had a right of private defence and whether the other members in the assembly had a-right of private defence. The points to which the learned Judge addressed himself in the first instance could appropriately have been considered in connexion with these latter questions.

Another point to which objection has been taken against the charge is that the Judge has quoted to the jury the headnotes of decided cases. It is said he should not have done this it being his duty to lay down the law and for this reference'' is made to Meher Sardar v. Emperor 16 C.W.N. 46 and to another case of the Calcutta High Court in Jabanullah v. Emperor AIR 1930 Cal. 1162 in which the Court deprecated the practice of referring to reported decisions. Although there is no rigid rule against such citation, it was said that the practice of reading out head-notes or other portions of the report of a case not before them to the members of the jury is a dangerous practice to be discouraged as more likely to mystify than enlighten the jurors.

In the present case the quotation to which objection is most strongly taken is an extract from the headnote to Radhe Sahi and Others Vs. Emperor, .The headnote was quoted by the Judge in a form which it is said suggests that the decision had laid down a general proposition applicable to the case before the jury, the sentence in the charge running thus:

The learned advocate for the defence has rightly contended that in the absence of prosecution presenting a true account of the story it is not necessary for the accused to plead right of private defence and to show that they did not exceed that right.

If the learned Judge had read the decision he would have found that the judgment contained no such general statement. What was said in Radhe Sahi and Others Vs. Emperor, was this:

The case which has been presented to the Court by the prosecution is not a true account of how Munshi Rai was killed. It was therefore unnecessary for the accused to plead private defence.

The headnote is a reporter''s paraphrase which makes a general proposition of a conclusion arrived at on particular facts. I hope this will make clear to the learned Judge the danger of quoting from headnotes and not from the actual observations made in a judgment. It is also preferable to avoid the practice of citing recorded authority in support of observations which are the fruit of the experience of Judges in matters of facts and are not expressions regarding questions of law. It may well be remembered that in deciding criminal appeals, a class of cases which gives rise to a great number of the recorded decisions, the High Court generally sits as a Court not only of law but of facts and in deciding questions of fact general observations arising out of the experience of Judges as to whether the conduct of parties leads to certain inferences and so on are from time to time made. These and similar observations should not be cited to juries as pronouncements of law binding on them, though the Judge trying a case if he thinks fit may adopt and give to the jury as his own any such observation.

It is contended that the Sessions Judge has unduly stressed to the jury the burden of proof lying on the prosecution and has unnecessarily quoted two decisions in support of what he was telling them. As before I deprecate the unnecessary citation of decisions. It would have been more to the point to refer to Section 101, Evidence Act, and Illus. A thereto and as regards burden of proof of the right of private defence to Section 105, Evidence Act. I am not here to consider what the effect would have been of these imperfections in the charge if the trial had re-suited in a conviction and in an appeal by the party complaining of the defects. As already stated, there is no appeal. The petitioner has come to this Court more than 60 days after the disposal of the case and it has not been shown that there was not an impartial trial, or that there has been a clear failure of justice. In the result the application is dismissed and the rule is discharged.